Education Week staff writer Evie Blad explores some of the nonacademic issues that bear on students’ learning. Join her for insights, news, and analysis on a wide range of issues including school climate, student engagement, children’s well-being, and student behavior and discipline.

A Wisconsin school district announced in a letter to parents last week that it wouldn't discipline dozens of boys who appeared to make a Nazi salute in a staged photo taken before last year's junior prom. After a local newspaper wrote about the decision, the same outraged group of internet users that made the photo viral in recent weeks questioned the decision.

Shouldn't these students face some consequences for appearing in an image that had been so startling and hurtful? What message does that send to other students, particularly students of color? Is it really true that the district can't discipline these boys?

The Baraboo district reached its conclusion after the first phase of an investigation into the photo, which was apparently taken by a parent photographer, who shared it on his website. The photo—taken on the steps of a courthouse before the start of prom—spread quickly when it was shared on Twitter this month and amplified by a journalist, who also collected reports from anonymous students who reported claims of racial discrimination and bullying at Baraboo High School.

Students' First Amendment Rights

"As previously stated, we cannot know the intentions in the hearts of those who were involved," District Administrator Lori Mueller wrote in the letter to parents, according to the Baraboo News Republic. "Moreover, because of students' First Amendment rights, the district is not in a position to punish the students for their actions."

Among the district's findings it belives limits its ability to discipline students: The photographer was not hired by the district, the photos were taken at an off-campus location before the official event, and some of the students in the photo no longer attend Baraboo schools.

Educators face complicated questions every day as they seek to balance student discipline with an obligation to respect their First Amendment rights, often in situations that recieve far less public attention, said Francisco Negrón Jr., the chief legal officer for the National School Boards Association. Without knowing more details, Negrón wouldn't comment on whether the Baraboo district's response to the photo was appropriate, but he spoke generally about some of the legal questions surrounding such a decision.

"How troubling it is to see young people, whether they're students in public schools or not, engaging in a Nazi salute, which is a sign post for hate speech if not the classic example of it," Negrón said.

But the U.S. Supreme Court has ruled that "students don't lose their constitutional rights at the schoolhouse gate" in the landmark ruling of Tinker v. Des Moines, in which the high court sided with student Mary Beth Tinker who wore arm bands to protest the Vietnam War.

And subsequent cases have illustrated a few tests for schools to use in determining whether they have authority to punish students for speech issues—which can include situations as varied as choosing to kneel on the sidelines of a football field during the National Anthem to protest racial injustice, violating a school dress code, or posing for an offensive photo.

"The school has to ask: 'Will this expression result in material disruption or infringe on the rights of others?' " Negrón said.

For example, a school may be able to discipline students for making gang signs in a photo if the school had a history of problems with gang violence that it had sought to remedy. When a school asserts that a student's speech disrupted an educational environment, courts seek clear indicators to prove that disruption, like an increase in disciplinary incidents or tensions, he said.

Schools have the most authority to discipline students for speech events that happened on campus or at a school event. But courts have upheld schools' decisions to discipline students for off-campus speech issues, depending on how strongly those events are connected to the school environment, he said. For example, schools regularly discipline students for cyberbullying their peers, even for internet posts that were made on their own time and with their own phones and computers, arguing that such posts cause disruption to the school day. Civil liberties groups like the ACLU have argued that some cyberbullying policies go too far and infringe on students' rights.

The Baraboo students were apparently not at a school-sanctioned event, but they were with dozens of their peers. Would they have reasonably known that such a photo would have spread throughout the school, causing a reaction among their classmates?

Student Intentions

And does the students' intent matter? The photographer defended the photo, saying he had asked the students to wave to their parents. A student who refused to make the pose told the local newspaper that his peers seemed to fall into group think, quickly making the gesture without fully considering what it meant. One student in the photo can be seen making an "okay sign" with his fingers, which some people use to troll people who are concerned about white supremacy.

Courts do not always consider students' intentions as an adequate defense against school punishment, Negrón said.

In the 2007 case of Morse v. Frederick, the U.S. Supreme Court sided with a school that disciplined a student for holding up a banner that said "Bong Hits 4 Jesus," at a school-sponsored event. Though the student didn't cause a disruption by holding up the banner and said he didn't intend to encourage marijuana use, the district argued that, whatever the intent, the message violated its ban of messages that promote drug activity. The court's majority ruled that schools have an interest in discouraging drug use and that the student's message could be reasonably seen as encouraging it.

A Need to Respond

Should the Wisconsin district discipline the students in the photo? Can it? Those questions continue to provoke responses online. Some say the students would be more likely to be disciplined if they weren't white, citing examples like some black basketball players who were disciplined by another Wisconsin district for making hand gestures administrators viewed as gang signs. That decision was later reversed.

Whether or not the Baraboo district chooses to discipline the students involved, it can and should respond to the photo to ensure all students at the majority-white school see that educators are taking the incident seriously, Negrón said.

"I think it's an opportunity to speak about how actions matter," he said. "That has nothing to do with regulating speech, that has to do with social norms and societal values."

The Baraboo district plans to conduct restorative practices to help students "repair damage caused to their personal and community relationships," the Baraboo News Republic reports. And it has short-term and long-term plans to train on hate and racism.

The district has also had several public hearings about the photo and student concerns that have surfaced since it went viral.

Some community members have already sought to start such conversations by posing on the courthouse steps where the photo was taken to convey a sense of "unity."

"We must come together and, in a meaningful way, consider the travesties of the past that were fueled by hatred and embrace the celebration of diversity fueled by love and acceptance," Mueller's letter said.

Top photo: A group of Wisconsin high school boys stand on the steps outside the Sauk County Courthouse in May, 2018, in Baraboo, Wis. The image has drawn widespread condemnation because of the appearance that some of the students are giving a Nazi salute. The photographer, who has a son in the photo, denies there was an intent to offend anyone and says they are waving goodbye to their parents before they head to prom. --Peter Gust via AP

Bottom photo: Baraboo residents gather on the steps of the Sauk County Courthouse on Nov. 12, 2018, in Baraboo, Wis., to advocate for unity at the same spot where high school students were pictured last spring delivering what appeared to be a Nazi salute. --Ben Bromley/Baraboo News Republic via AP

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